Written Testimony of Leslie E. Silverman Partner, Proskauer LLP

Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan

I am extremely honored to be invited back to the Equal Employment Opportunity Commission (EEOC) today. It is July and I know that means that this agency recently celebrated another birthday. So many things in the world around us seem to be changing at lightening pace. Unfortunately, forty-seven years in, discrimination continues to persist and the EEOC's role in eradicating unlawful employment discrimination remains vital.

I must tell you that as I reviewed the materials in preparation for my testimony today, I was incredibly impressed by the enormous collective, inclusive effort this Commission has put into revamping its strategic planning process. I wholeheartedly agree with your goal of developing a Strategic Enforcement Plan that will have a greater impact on discriminatory practices, improving operations and leading the Commission into the future. I also applaud the Commission for holding this meeting today in furtherance of that laudable goal.

I have been asked to share my views about the Commission's operations and effectiveness and to share my recommendations given the current environment, the Commission's resources, and its current workload. In particular, I have been asked to discuss my point of view based on my role in creating and leading the Systemic Task Force. I have not publicly discussed the work of the Systemic Task Force in any depth in a number of years and I appreciate your giving me this opportunity to do so. I hope that my remarks today will be taken in the spirit they are intended. I care deeply about this agency and I want it to succeed in its vital mission.

The Systemic Task Force was initiated because it was clear that the agency was not doing a particularly good job of identifying and routing out systemic discrimination. While the EEOC certainly had pockets of systemic expertise, it was scattered throughout the field and in headquarters, and was not being utilized to its full potential. When I first established the Systemic Task Force back in 2005, less than a handful of the EEOC's District Offices routinely conducted systemic investigations and litigation. We understood that in order to effectively marshal the resources the EEOC had to deal with systemic, nationwide issues, we had to productively utilize our resources on a similar nationwide basis.

Since the Commissioners unanimously voted to adopt the Systemic Task Force's recommendations in April 2006, this Commission has made significant progress in its efforts to create a robust, nation-wide systemic program. Among other things, the EEOC has increased training, created new roles devoted to systemic work, shared existing expertise, hired additional experts to support the program and fostered an environment that values systemic efforts. As the EEOC's new Strategic Plan for Fiscal Years 2012- 2016 makes clear, systemic work is not only a top priority throughout the agency today, but also will continue to be high priority for this agency in the foreseeable future.

I am extremely honored and pleased to see that six years in, the Commission continues to embrace the Systemic Initiative. I am proud of the collective work product of my Task Force which included fourteen incredibly dedicated and knowledgeable career employees from offices throughout the field and headquarters. Together, we created a program that would not only help change the mindset of Commission employees, but that would be able to operate within the Commission's challenging culture which reflects the perennial power struggles among and between staff in headquarters and the field, enforcement and litigation, as well as among political and career staff.[1] Although these issues affect many of the large enforcement bureaucracies in Government, the Commission has perhaps experienced more of this as its direction has changed and as the various components have attempted to adapt to the policy and programmatic changes and the evolution of the law.

I do not mention this dynamic to air the Commission's dirty laundry, but rather to explain why after much debate, the Task Force decided to create a program that would work within the existing balance of powers. Thus,

• rather than having EEOC Headquarters dictate the systemic issues to the field offices, we created a program whereby the 15 District Offices and the Washington Field Office were tasked with identifying salient systemic issues within their charge inventories and regions and asked to create and develop Systemic Plans aimed at addressing those issues;
• rather than naming one overarching Systemic Czar in EEOC headquarters to oversee the initiative, we charged the three Headquarter departments with primary responsibility for the program - the Office of Field Programs, the Office of General Counsel and the Office of Research and Information Planning - with coordination and oversight of systemic investigations and litigation, including approval of the Systemic Plans;[2]
• rather than place enforcement over litigation within the District Offices, we required that both the District Directors and Regional Attorneys be involved in developing the Systemic Plans and in the decisions related to development of their systemic work; and
• we created the Committee of Advisors for Systemic Enforcement ("CASE"), a selected group of EEOC career staff with systemic expertise who were tasked with sharing their expertise with the field, keeping a hand in the initiative and reviewing and providing input into Systemic Plans to help ensure that the Commission would be selecting an appropriate range of issues to investigate and perhaps litigate.

I am pleased that the Systemic Task Force's time and efforts were not in vain. At the same time I cannot tell you that, in hindsight, all of the decisions the Task Force made at the outset were necessarily the correct decisions. Nor, can I tell you that I always agree with the decisions made in connection with the administration or the advancement of the EEOC's Systemic Program.

As an initial matter, while I applaud the agency's decision to embrace the program and to continue to make systemic work a top priority, as the Commission is no doubt aware, resources are scarce. The EEOC must continually balance the size and scope of its systemic program with its other responsibilities. Among those competing responsibilities, the agency must successfully manage the charges in its inventory. History has shown that when the EEOC has been able manage its charge inventory, the agency is most successful in fulfilling its mission. I recognize that managing the inventory has become an increasingly difficult challenge as the number of charges filed with the agency escalated by more than 20% in the years since the Commission first voted to implement the Systemic Task Force's recommendations.[3] The Commission has made some progress in the last year or so in decreasing the escalating inventory of aged charges of discrimination, yet stakeholders on all sides continue to raise legitimate concerns regarding the time it takes to investigate a charge and the quality of many of those investigations.

I agree with those stakeholders who have urged the Commission to improve the intake function. I would also urge the agency to focus on improving the quality of its investigations and to continue to foster and utilize tools such as the mediation program which help the EEOC resolve charges in a timely manner. I believe that before the EEOC focuses its efforts on additional issues, it should work to improve the quality and timeliness of its charge processing.

Second, with regard to the administration of the program, it appears from my vantage point that, despite the EEOC's laudable efforts during the last six years, the agency has not yet achieved the "coordinated, strategic and effective" approach to systemic work that the Task Force envisioned. As an initial matter, and as a number of my colleagues from the Management Bar have previously detailed in their submissions to the Commission and elsewhere, it does not appear that each and every systemic investigation the EEOC has pursued has been carefully selected or coordinated. Nor, do these investigations appear to reflect a coordinated effort to pursue policy objectives and develop the law.

Additionally, while the agency may take issue with recent court decisions in a number of systemic cases, these holdings certainly suggest that the quality of the Commission's systemic investigations and conciliation efforts is inconsistent. These decisions also suggest that the way the agency is conducting certain systemic investigations may be not be serving the individual charging parties, the respondent community or the Commission's future systemic endeavors. I have always believed that the Systemic initiative would gain acceptance by the careful and professional undertaking of these complicated investigations and litigations. It must also be recognized that the courts are as much a stakeholder as the charging parties and the employers. The Initiative must achieve the respect of the courts as it attempts to have the courts recognize the efforts and purposes of the Commission in bringing those cases.

As the Commission looks to develop and implement a Strategic Enforcement Plan, it should consider the possibility that in the EEOC's zeal to ramp up its systemic efforts and create a robust, nation-wide systemic program, the agency may have bitten off more than it can chew. In particular, I am troubled by the strategy and effectiveness of pursuing a multitude of systemic investigations challenging the same policy and/or issues, especially where the law supporting the EEOC's position is, at best, unsettled. Responding to the Commission's detailed and demanding RFIs can be extremely burdensome. While these RFIs are clearly necessary in certain instances, is it necessary for EEOC to initiate a systemic investigation on every large employer with, for example, a questionable leave of absence or background check policy? This seems to ignore a salient goal of the Initiative which was to establish policy in one or more systemic cases and then see that policy adopted as an ongoing way of doing business. In effect, we envisioned strategic enforcement and litigation, not wholesale case prosecution.

In my mind, it would it be far more strategic, effective and economical for the Commission to select a reasonable number of lead charges to investigate for a given issue and at least attempt to find an alternative solution for the other charges remaining in the systemic pipeline. I believe that if the agency approached respondents earlier on in the process, it is likely to find that that many employers are willing to make reasonable changes to their policies and practices. These policy changes would come sooner and they would achieve the EEOC's goals of serving the public interest.

Finally, I would be remiss if I did not touch on one aspect of the systemic program that should concern each of you as Members of the Commission. Although I provide all of my comments today with the recognition that I no longer sit where you sit - meaning that I do not have full understanding of the inner-workings, policy and strategy-making decisions of the agency - it does not appear that you are sitting where I once sat. I do not believe that this Commission has the full vantage-point that I had as an EEOC Commissioner when we drafted the Systemic Task Force Report and Recommendations. As I previously discussed, the Systemic Initiative was created with the understanding that it would work within the existing system of checks and balances. The system we built on included the delegation of litigation authority, which exempted should have permitted the Commission to review the vast majority of systemic cases prior to the agency initiating litigation.[4] It is my understanding, however, that the Commissioners neither see nor approve the vast majority of these cases before they are filed. It is also my understanding that the Systemic Plans are never shared with the Commissioners. I am troubled by this.

As members of this body, you should not be setting policy or designating priorities in a vacuum. You must have exposure to and information about proposed and ongoing litigation, systemic and otherwise. If the Commission is cut off from understanding the types of cases and the theories of discrimination being pursued, as well as a continuing understanding as to how the cases are proceeding, it can neither make policy that is coherent, nor act as a supervisory body of the agency.

I am in no way suggesting that the Commissioners should substitute their authority or judgment for the operating arms of the EEOC, but rather the Commissioners must have an appropriate oversight and policy-making role and this is especially true for the systemic program. After all, it is the Commissioners who are responsible to Congress, and who are ultimately held accountable to the people for the actions of the agency.